TMI Blog2011 (9) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal has already been remanded to the Adjudicating Authority, this matter shall also go back to him to pass an order confirming duty demand with levy of penalty - Held that matter should be remanded to the Adjudicating Authority. - ST/3217 & 3096/2009-SM - - - Dated:- 30-9-2011 - Shri D.N. Panda, J. Presence: Shri Alok Arora, Advocate for the Assessee; Shri Fateh Singh, D.R. for the Revenue. Per D.N. PANDA: Moving application for recalling the order dated 1.2.2010 passed by the Tribunal, learned Advocate submits that against Order-in-Appeal No. 101/CU/MRT/2009 dated 28.8.2009 both Revenue and the Assessee came in appeal. Revenue filed its appeal on 30.11.2009 and that was registered as Appeal case No. E/3217/09 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty imposed invoking Section 11AC of Central Excise Act, 1944. Rule 25 of Central Excise Rules, 2002 was invoked to penalize the Assessee. For total erroneous construction of the law placed by Revenue before the Bench remanded Revenue Appeal to the Adjudicating Authority. 5. According to learned Advocate, appeal of the assessee registered as E/3069/2009 matured for hearing and notice had also gone to Revenue when Revenue's appeal had also matured for hearing. Had there been combined hearing of both the appeals, assessee would not have suffered. 6. Learned D.R. on the other hand submits that whatever material was available on record at the relevant time that was relied upon for arguing the matter. When clandestine removal was proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was uncalled for. 11. Learned Counsel suggests that if the Bench comes to a conclusion that the matter in controversy warrants levy of penalty of Rs. 20,000/- as that was directed by first appellate authority entire dispute may come to an end. The first order reveals that there was appreciation by first appellate authority that ingredients of Section 11AC are absent in the case in hand. Therefore, the matter should come to an end without further litigation in the matter. Since Revenue appeal has already been remanded to the Adjudicating Authority, this matter shall also go back to him to pass an order confirming duty demand with levy of penalty of Rs. 20,000/- to obviate aforesaid difficulties of representation against same order of f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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